IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

SENTENCE

Reportable
Case no: CC19/2024

In the matter between:

THE STATE

and

JACQUEN ROWHAN APPOLLIS Accused 1

RACQUEL CHANTEL SMITH Accused 2

STEVENO DUMAIZO DUWAYNE VAN RHYN Accused 3

Neutral citation:
Coram: N.C. ERASMUS
Delivered: 29 May 2025

Summary:


ORDER

You are sentenced to life imprisonment for the charge of human trafficking. You are
hereby sentenced to ten (10) years of imprisonment for the charge of kidnapping. Since
I have imposed life imprisonment, there is no necessity for me to decide on the
concurrency of the sentences, as they will be served concurrently by operation of law.

I also order for the entry of your names into The National Child Protection Register.

SENTENCE


ERASMUS, J:

[1] To begin, I believe it is fitting to reiterate the expression of gratitude I conveyed
when I delivered the judgement in the main case. Therefore, for the sake of the
record, it should be incorporated here.

[2] Having said that, it also occurred to me t he impact this matter had on the
community and the necessity for decision makers who can influence the
community’s access to justice to consider the way forward. I understand that
community members must travel to reach a courtroom in Vredenburg, and I see
the Minister of Safety for the province present there. There is a genuine
necessity, I believe, considering the unfortunate progression of events in this
matter.

[3] Joshlin grew up in a society characterised by the issues outlined by Mr.
Petersen, the s ocial worker who provided the pre -sentence reports to the Court.

This environment was plagued by social problems, and it was clear in this case
that criminality, particularly in the realm of drug distribution, had significant effects
on the community.

[4] The evidence indicated that Ms Smith, in particular, was in the need of social
services throughout for a prolonged period; and I wonder when her grandmother
complained in 2016 to the Department of Social Development in the need for a
protection order, what access did she have? When Ms Smith, in particular,
sought the support of Social Services that is rendered both through the
Department of Social Development as well as in the Magistrate’s Court. We
failed her.

[5] I began the evaluation on the me rits by considering the role of a child within a
village and community. As I impose the sentence on the accused today, it is
essential for me to act in the interest of the community while safeguarding the
rights of individuals, particularly focussing on th e rights of children in relation to
the charges presented in this case.

[6] It is important to emphasise that the charges reflect an intention to protect the
vulnerable in society and to restore and uphold the human dignity of individuals.
I trust that we will approach matters like these with the seriousness they deserve.

[7] That being acknowledged, I recognise that this represents the most challenging
aspect of a criminal case. As a judicial officer, and fundamentally as a human
being, I am tasked with making a judgement regarding the liberty and the
potential deprivation of that liberty for other individuals.

[8] I was referred to a number of authorities during argument in this case and was
exposed to many more in a lengthy state of judicial service. I do not propose
today to refer unnecessarily to legal precedent unless it is absolutely necessary
because the judgment is not aimed at the textbooks and the academia and are

understanding of sentence in a criminal court but rather it should be focussed so
that the accused persons know what were the considerations for their ul timate
fate and that the broader community can understand the meaning of and the
purpose of that sentence.

[9] I was constantly referred to the Appellate Division case as it then was in the
State v Zinn where the long debate yesterday about how the triad in Zinn and the
element of mercy interplay in the determination of an appropriate sentence.

[10] I was frequently directed to the Appellate Division case, formerly known as State
v Zinn, where the extensive discussion yesterday revolved around the inte raction
between the triad in Zinn and the element of mercy in determining a suitable
sentence.

[11] I was also referred to the judgement of Corbett JA in State v Rabie 1975.
However, what became clear in yesterday's debate is the long-standing history of
caution advised by writers over the centuries regarding how judges should
approach sentencing. I find it essential to reference the case of State v Rabie, as
articulated by Corbett JA at that time, as this will serve as a guiding principle for
my examination of the facts and circumstances that I will address shortly.

“A judicial officer should not approach punishment in a spirit of anger
because being human that will make it difficult for him to achieve that
delicate balance between the crime, the crimi nal and the interest of
society which his task and the objects of punishment demand of him. Nor
should he strive after severity, nor, on the other hand, surrender to
misplaced pity. While not flinching from firmness where firmness is called
for, he shoul d approach his task with a humane and compassionate
understanding of human frailties and the pressures of society which
contribute to criminality. It is in the context of this attitude of mind that I
see mercy as an element in the determination of the app ropriate

punishment in the light of all the circumstances of the particular case. It is
the duty of the court to balance all the circumstances applicable and to
blend that with a measure of mercy in arriving at an appropriate sentence
in the discretion of the trial court.”

[12] I will refrain from reiterating all the facts, circumstances, and factors considered
in this sentencing judgement. I have certainly taken it into account. I will
consider the facts of the case on their merits, along with all the evidence
presented to the court by the witnesses who testified during sentencing, as well
as the submissions made from the bar, particularly in relation to Mr Van Rhyn
and the additional affidavits submitted yesterday.

[13] Now, I need to turn to addre ss Mr Appolis, Mr Van Rhyn and Ms Smith so that
they understand how I arrived at the sentence that I will ultimately impose.

[14] Typically, a judgement is presented in the third person; however, I believe it is
fitting for the court to address the accused directly when imposing a sentence. I
will consider several factors that require careful balancing. The circumstances of
the individual to be sentenced, Mr. Appollis, Mr. Van Rhyn, and Ms. Smith, are
presented without any specific order of importance. Additionally, I will address
the offence in detail, consider the interests of the community, and emphasise the
significance of the sentence's purpose.

Now, let me start with the last part first

[15] The community is calling for retribution. Indeed, it is a fundamental aspect of
sentencing, as those who harm society must face consequences for their actions.
This is achieved through a system of laws and various forms of punishment.
Additionally, it is crucial that sentencing serves the important function of deterring
individuals from re-offending, as well as discouraging others who might consider
undermining the moral values of societ y. In certain instances, retribution and

deterrence emerge as significantly more prominent than the other objectives of
sentencing.

[16] I have been present ed with the argument that I should prioritise rehabilitation as
a key purpose of sentencing. I believe that there are specific types of cases and
the circumstances surrounding them where the rehabilitation and potential
rehabilitation of an offender are n ot prioritised. In this instance, we were
fortunate to have detailed reports from Mr. Petersen regarding you, Mr. Appollis,
Mr. Van Rhyn, and Ms. Smith. I will thus revisit the circumstances presented to
the court.

[17] I take a moment to acknowledge the conditions surrounding the creation of these
reports. It is crucial for a court, when determining a sentence and gathering the
required information and evidence, to act proactively. As I mentioned at the
beginning, it is the court's responsibility to e nsure that a fair and just sentence is
imposed. I requested the pre -sentence reports for that reason, and I am grateful
for the facilitation provided by the department of Social Development in the
province.

[18] Typically, courts are asked to allow a mi nimum of six weeks for these kinds of
reports. I provided them with a significantly shorter timeline, and when it
appeared that the delivery would not be on schedule, I applied some pressure,
resulting in their timely delivery. I stated in open court the other day that since
last Saturday, it has been all hands on deck.

[19] Despite the baseless criticism directed at Mr. Petersen in this court by the
defence counsel, I must express that over the years, this is one of the most
thorough reports I have encountered. The diligence and clarity of thought evident
in the reports are truly commendable. Mr. Peterson demonstrated himself to be
a dependable servant of the people through the way he prepared and presented

these reports to the court. I hope this type of service is accessible to everyone at
all times.

[20] Greetings, Mr. Appollis, I acknowledge that you have had two encounters with
the law previously; however, I will not focus on those when considering the
sentencing in this case. Yesterday, I remar ked to Mr. Harmse that I understand
from the report that you hail from a good home. You had chances to advance in
life, yet you opted for a different route by engaging in substance abuse, which
altered the course you might have taken.

[21] You are the father of an 11-year-old daughter, and you have taken on the role of
a father figure for Joshlin and Ms. Smith's children. I will revisit that father -level
later in this judgement as it pertains to Joshlin. It appears that you have not been
gainfully employed for any significant duration and have largely depended on Ms.
Smith for your livelihood. I am concerned about the attitude you exhibited, as
described by Mr. Petersen, in your personal circumstances. It appears that you
have not expressed any remor se or concern regarding the situation with Joshlin.
Instead, you continued to distort the truth, even as this sentencing approached. I
do not see any mitigating factors in your personal circumstances.

[22] Mr. Petersen characterised Mr. Van Rhyn as a threat to society. Your upbringing
was challenging, as your late father was often away from home due to work
obligations. The home was impacted by significant alcohol abuse, yet your
mother remained the resilient figure who provided care. In a manner aki n to Mr.
Appollis, it appears that you had the chance to lead a respectable life from the
home, yet, in contrast to Mr. Appollis and Ms. Smith, in addition to the drug use
and its abuse, you opted for a life of crime.

[23] I disagree with the submissions that you have been rehabilitated. You have had
several encounters with the law related to robbery, which are considered violent

several encounters with the law related to robbery, which are considered violent
offences. Robbery is inherently a violent crime. You also engaged in house

breaking. I will not focus heavily on the drug c harge, however, you were
provided with the chance for correctional supervision and the opportunity to
rehabilitate within society. Unfortunately, you squandered this opportunity by
failing to comply with your conditions, resulting in an additional 407 days served
due to a parole violation. I anticipated that someone who has experienced
circumstances similar to yours, with a father murdered at a young age, would
understand the repercussions, not just for yourself, but also for the wider
community when families are impacted by such events.

[24] Your demeanour in this courtroom reflected a lack of concern, and this attitude
extends beyond these proceedings. When Mr. Petersen asked about your
feelings regarding Joshlin's disappearance, you explicitly stated that you simply
do not care. As a father of a young daughter who is currently four years old, you
have demonstrated a complete lack of remorse and concern, as reflected in your
own words. In your personal circumstances, I see no mitigating factors.

[25] Ms Smith, according to the undisputed evidence of Mr Petersen, from information
gathered through the collateral sources, family members that he interviewed as
well as the victim impact statement presented yesterday by your mother, is
portrayed as a person that is manipulative and manipulates the facts as it suits
you. You went as far as to blame your parents for your conduct in this matter.

[26] The evidence regarding the disappearance of your daughter was unequivocal.
Furthermore, on one occasion ear lier and yesterday, I observed no signs of
remorse; however, this lack of concern did not begin there, as we are aware from
19 February 2024.

[27] Indeed, I must consider that you have two other minor children; however, it is
fortunate that they are currently being cared for. The caution I must exercise
when imposing a term of imprisonment on another and a carer, as articulated in

when imposing a term of imprisonment on another and a carer, as articulated in
the case of M in t he Constitutional Court, carries diminished significance. Mr.

Petersen has, however, indicated that steps should be taken, and we heard
during the main trial that measures have been implemented to ensure the care of
the two minor children.

[28] I gather from the evidence of Mr Petersen and the victim impact statement from
your mother that you were given all the opportunities. Yes, you were born under
difficult circumstances, but you were given the opportunity through your
grandparents that cared for you to have a stable life. You, unlike Mr Appollis and
Mr Van Rhyn that did not do that well at school you matriculated.

[29] Your mother's victim impact statement clearly conveyed her desire to support
you, even in the face of your drug use and abuse. A helping hand was pushed
away in a threatening manner. Until now, I have not observed any signs of
remorse. In regard to the personal circumstances, I do not see any mitigating
factors.

[30] The prosecutor will contend, and has contended, that given th e clarity of the law
regarding a prescribed sentence and the absence of substantial circumstances,
as I have noted, this should conclude the inquiry at face value. The situation is
not straightforward, as the final decision still lies with the court, and it is essential
to consider more than just a single element. All aspects need to be assessed in
a comprehensive manner, and equilibrium must be achieved.

[31] I will begin by referencing the pre -sentences, emphasising that the inquiry must
ensure the pre scribed sentence is both fair and just. If not, the court would be
compelled to impose a lesser sentence. I do not consider the prescribed
minimum sentence to be the sole guiding factor in determining this sentence.

[32] let me turn to the next issue which is the offence:

[33] I do not need to stress the seriousness thereof.

[34] On count 2 you were convicted of kidnapping

[35] The abduction of a six -year-old child results in the denial of her freedom of
movement and her liberty. Indeed, it is co mmon to consider the presence of
violence or the circumstances that could significantly impact the victim. The
defence contended that there is no evidence presented to the court indicating
that Joshlin experienced any harm. This argument lacks any merit. It must entail
the deprivation of an individual's liberty and freedom of movement. It will
inevitably result in some emotional distress.

[36] This leads me to Count 1:

[37] The act is specifically directed at the exploitation of individuals for vario us
purposes. In this specific instance, Mr. Appollis and Ms. Smith shared a parental
relationship with Joshlin.

[38] I would like to bring to your attention the details of this offence. In August 2023,
Ms. Smith expressed to Mr. Coetzee her dissatisf action with her home. She
wished to part with her child so that you and Mr. Appollis could enjoy a more
fulfilling life. How negligent is that? I would like to remind you that I am referring
to the offence.

[39] Additionally, I must address the inter ventions that occurred during the times Ms.
Smith had to attend the rehabilitation centre on two separate occasions. The
initial instance occurred when Joshlin was an infant. The Andrews family
provided her with care, and I will now move ahead to the vic tim impact
statements we had. I will revisit this and keep it at the forefront of our discussion.

[40] On February 18, discussions occurred following an incident that had caused you
distress. The accusation of chicken theft against Mr. Appollis was, in your

opinion, a bold move by someone who you believe should be exposed for
naming him as a suspect. Thi s resulted in a passionate dispute between you
and Mr. Appollis, ultimately culminating in Joshlin being pulled towards the
house. A witness, acting independently, approached us to share their account.
The behaviour in question appears to be part of a pat tern, as I previously pointed
out the evidence provided by Mr. Petersen regarding what the collateral sources
reported to him, and your actions towards her remained unaddressed. The
discussion occurred at that time.

[41] Mr. Appollis stated that the mo tivating factor was your tendency to place blame
on others for regarding your child as a commodity and selling her off. Ms.
Lombard and Mr. Van Rhyn attended, both of whom are parents of young
children. Mr. Van Rhyn, your daughter must have been three ye ars old or
younger if she is currently four.

The plan is now being implemented:

[42] I take a moment to clarify that my focus is on the offence. The following day,
Joshlin is sold for R20 000. Her whereabouts remain a mystery. The victim in
this type of offence and their treatment is crucial. Dr. Van der Watt emphasised
several factors that the Act requires me to consider. As I mentioned earlier, I will
not be listing them in detail, as my intention is for you to grasp the gravity of the
offence.

[43] On the morning of the 19th, Mr. Appollis informs us that he fed Joshlin. He claims
to have cared for her. She meets his gaze and makes her pitch, while Mr.
Appollis observes in silence, leaving you to remain quiet. This is the offence:
betraying the trust that she must have placed in you, Mr. Appollis, as a parent,
despite not being her biological father, and you, Ms. Smith, as the one who gave
birth to her; and you, Mr. Van Rhyn, as a good friend and the father of a small
child.

[44] Turning bac k to the defence, to the offence itself and the effect it has on the
community we have heard, and I have heard the victim impact statement of Ms
Olivier. Joshlin was a child in the community. We heard how she would go to
some of the houses on the evidence presented here including Ms Olivier and
how she would sit at that table. Ms Lombard and I am going to deal with her
situation in a different hearing also looked Joshlin in the eye and gave her
something to eat and did nothing to protect her.

[45] Returning to the defence, to the offence itself and its impact on the community,
we have heard, and I have listened to the victim impact statement of Ms. Olivier.
Joshlin was a young member of the community. We learnt about her visits to
various houses me ntioned in the evidence, including Ms. Olivier's, where she
would sit at that table. Ms. Lombard and I will address her situation in a separate
hearing. She also looked Joshlin in the eye, offered her something to eat, and
failed to take any action to protect her.

[46] The community and society of Saldanha were deeply divided. We learnt about
the thorough searches that occurred and a victim's perspective, as the wider
community expresses their own victimhood. One individual conveyed to me
through a stat ement yesterday, “I still cannot wear the clothes I wore when we
searched.” We have reached the fifteen -month mark. During the merits trial, we
learnt that individuals continue to seek answers. We learnt about individuals
from various places who partici pated and the resources utilised, yet the
community was divided due to the actions of the three of you.

[47] Ms. Maart speaks on behalf of her children; she sometimes refers to them as her
learners. During her testimony in the merits trial, she describ ed the individual
who contacted her as one of my mothers. Speaking about a mother of a student
in her class. We observed the tree. We observed the fingerprints of those young

in her class. We observed the tree. We observed the fingerprints of those young
children who are now in Grade 2, along with the one that is missing.

[48] We listened to the evidence regarding the growing concern within the community
about the safety of their children and the fear of them going missing. Ms. Maart
informs us that it has become increasingly common for parents to drop off and
pick up their chil dren due to feelings of insecurity. Your crime has significantly
impacted the community.

[49] Ms. Daniels, I regret having to single you out, but I want you to know that I have
heard you. When your son, Ms. Smith, goes to school or rugby practice, yo ur
mother is uncertain about how to handle it if he is just a little late, and I believe
this situation impacts not only the Saldanha community but also the extended
family. The community has been impacted significantly, yet it is heartening to
witness in dividuals coming together to advocate for children. One positive
outcome of this situation is the opportunity I had to observe the remarkable
discipline and unity within the community as they stand up for their dignity.

[50] Given the community's intere st in the offence, they have specific demands and
express various outcries. I'm certain there are numerous individuals who would
request a sentence that could be considered inhumane. That is why we
eliminated it, as they do not consider even life impriso nment to be sufficient
punishment for the damage inflicted on the community. However, I remind myself
of what I previously shared with you in this judgement.

[51] I discussed the two aspects of a sentence's purpose and how one should find a
balance between these factors. I attempted to clarify how your individual
situation, the nature of the offence, and societal interests intertwine in the
sentencing process. I al so reminded myself to approach this with compassion
and humanity, to show mercy, and to avoid letting anger —whether my own or
that of the community —influence my actions. Instead, I aimed to align with the
community's wishes while maintaining a balanced per spective. I made an effort
to avoid that.

[52] I have reviewed the minimum sentences and the prescribed sentences, and
indeed, upon considering the prosecution's request, I should impose life
imprisonment. It allowed me to consider the various ways to e xplain things to
you. A sentence of imprisonment is undoubtedly the only fitting punishment.
The inquiry is merely about the duration. You are all three relatively young, and
indeed, one of the purposes of a sentence is to rehabilitate the offender. I
recognise that there is always that potential. How can one reconcile societal
interests with personal rehabilitation prospects when an individual commits a
heinous crime?

[53] I believe that even if I were not constrained by a specific sentence, I would still
have contemplated the most severe penalty I could impose. In my view,
considering all the factors and circumstances I have outlined, it reflects your
moral culpability. I acknowledge that at the time of the offences, you were using
substances that may have influenced your actions; however, this does not serve
as an excuse. If this was a factor that contributed to your offences, you had the
chance to communicate that to me, but you did not think clearly at the time due to
being under the influence. Y ou certainly did not do that. Throughout the course
of this trial, it appeared that you, Mr. Van Rhyn, and Ms. Smith found it amusing.
At one point, I mentioned that during the testimony of certain witnesses, I noticed
the captain was absent today as he was celebrating. You did not approach it with
the seriousness it deserved. I cannot identify anything that warrants a lesser
sentence than the most severe one I can impose.

[54] I understand that the second charge was integral to the overall planning, and I
must mitigate the impact of that sentence. Before I announce the sentences in
this matter, the prosecutor requested that I order your names to be entered into
the National Child Protection Register. Given the specifics of this case, I am

the National Child Protection Register. Given the specifics of this case, I am
prepared to issue an order.

[55] Finally, I expressed during the merits trial my dissatisfaction regarding the
appropriate adherence to the PACOTIP Act by the administrative systems that
are to be established. I strongly encourage the government stakeholders to
prioritise this matter and act promptly, as it is essential for safeguarding the
vulnerable and fulfilling the goals of the Act. I am unable to place an order due to
a lack of sufficient details. Mr. Van Rhyn has been deemed unfit to possess a
firearm. Given the outcome for Ms. Smith and Mr. Appollis, I find it unnecessary
to issue an order due to the sentence I intend to impose.

[56] The kidnapping charge does not have a set sentence due to the serious nature of
the circumstances involving a minor child. I believe that a lengthy prison
sentence should be enforced for that charge.

[57] Therefore, based on the reasons I have outlined, which I trust you have
comprehended, I will now proceed to impose the sentences. Mr. Appollis, Mr.
Van Rhyn, and Ms. Smith, I will announce the sentences simultaneously as they
are identical. I will not make any distinction, despite Mr. Van Rhyn's previous
convictions, while you, Mr. Appollis, and Ms. Smith do not have any.

[58] You are sentenced to life imprisonment for the charge of human trafficking. You
are hereby sentenced to ten (10) years of imprisonment for the charge of
kidnapping. Since I have imposed life imprisonment, there is no necessity for me
to decide on the concurrency of the sentences, as they will be se rved
concurrently by operation of law.

I also order for the entry of your names into The National Child Protection Register.


________________________
ERASMUS, ADJP
JUDGE OF THE HIGH COURT

Appearances

For The State: Z Swanepoel with A Heeramun
Instructed by: Director of Public Prosecutions

For The Accused: S Harmse, N Mkabhayi and R Sivnarain
Instructed by: Legal Aid South Africa